Border Patrol praises tougher tactic

Zero tolerance has slashed illegal immigration, agents say, while critics point to economy

Updated 6:57 pm, Sunday, May 13, 2012

Photo: Mayra Beltran

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Border Patrol agent Jose Tellez checks out a road parallel to the Rio Grande. This stretch of border, near Eagle Pass, is "ground zero" for a strategy credited with transforming immigration enforcement since 2005.

Border Patrol agent Jose Tellez checks out a road parallel to the Rio Grande. This stretch of border, near Eagle Pass, is "ground zero" for a strategy credited with transforming immigration enforcement since

Guillermo "Wicho" Flores and Roberto Gonzalez don't have to contend with big crowds at the Eagle Pass Golf Course. Situated along the Rio Grande, the course used to be heavily traveled by illegal immigrants.

Guillermo "Wicho" Flores and Roberto Gonzalez don't have to contend with big crowds at the Eagle Pass Golf Course. Situated along the Rio Grande, the course used to be heavily traveled by illegal immigrants.

Photo: Mayra Beltran

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A holding cell stands empty at the Eagle Pass Border Patrol Station, which has seen a major decline in arrests since “Operation Streamline” began in 2005.

A holding cell stands empty at the Eagle Pass Border Patrol Station, which has seen a major decline in arrests since “Operation Streamline” began in 2005.

Photo: Mayra Beltran

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Beach visitors in Tijuana, Mexico, stand at the end of the border fence with the United States.

Beach visitors in Tijuana, Mexico, stand at the end of the border fence with the United States.

Photo: Don Bartletti, MCT

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U.S. Customs and Border Patrol agents patrol along the Rio Grande in Penitas, Texas.

U.S. Customs and Border Patrol agents patrol along the Rio Grande in Penitas, Texas.

This golf course once doubled as major illegal immigration corridor, its trampled fairways trumpeting America's failure to secure its southern border. Groups of 20, 30, even 60 illegal immigrants would clamber up the muddy banks of the Rio Grande and onto the course, looking to turn themselves into the nearest U.S. Border Patrol agent, knowing they wouldn't go to jail.

But on a chilly day in December 2005, this stretch of border became "ground zero" for a Border Patrol experiment dubbed "Operation Streamline," a strategy that transformed immigration enforcement along large swaths of the border. Rather than sending illegal immigrants voluntarily back to their countries or processing them through civil immigration courts, nearly all those caught were funneled into the federal criminal justice system, prosecuted, imprisoned and sent home as convicted criminals.

Now, the grassy expanse is quiet, save for the soft swoosh of the river, the ducks quacking on the golf course's pond and the flapping of the flag on the fourth hole.

Border Patrol officials have expanded the "zero tolerance" zone to cover all 210 miles of the Del Rio Sector and other stretches of the border in Texas, New Mexico and Arizona.

Yet, the so-called Streamline strategy has become a political flash point in the border security debate, with some immigration hawks, including U.S. Rep. John Culberson, R-Houston, lobbying to expand it along the entire length of U.S.-Mexico border.

Top officials in President Barack Obama's administration have resisted pressure to criminally prosecute everyone caught crossing illegally, calling Streamline only one piece of its new broader border enforcement strategy of individualized punishments.

Critics also call Streamline costly and "draconian," warning that the strategy has overwhelmed border courts and, in the words of the chief public defender in Del Rio, created a "nightmare" for immigrants' due process rights.

While Homeland Security officials credit Streamline with helping to drive down border arrests to a 40-year-low, several immigration experts said much of the decrease is likely due to the souring of the U.S. economy. Apprehensions declined from 1.17 million in 2005 to 327,577 in 2011.

"The Border Patrol has always tried new strategies and the immigrants keep coming," said Nestor Rodriguez, a sociology professor at the University of Texas-Austin. "What seems to make the big difference is not the border strategy but the economic recession and things that happen in the interior, like checking for driver's licenses and IDs."

What's more, some immigration experts say, the government hasn't provided enough data on the program - or even a cost estimate - to enable researchers to independently evaluate whether the strategy works.

Cantu, for his part, considers Streamline an unqualified success. On some days, he says, he can count on two hands the total number of illegal immigrants his agents catch, down from more than 500 daily at the peak of the influx years ago.

"It took some time for word to go back into Central and South America, but once it did, the tide shifted," he said.

Seven years ago, dozens of illegal immigrants would wade across the river together in broad daylight and walk up to agents on the golf course to surrender.

The Border Patrol lacked the detention center beds and funding to house the illegal immigrants while they waited to appear before an immigration judge. So thousands of non- Mexicans were simply issued paperwork - some called them "diplomas" - instructing them to come back for a court hearing in 30 days. Most never came back, using the paperwork as a pass into America's interior.

A fed-up Randy Hill, then sector chief for the Border Patrol in Del Rio, and several fellow agents started pushing for a new "zero tolerance" strategy. The agents wanted to use a law criminalizing illegal entry, on the books since 1952, to prosecute every illegal immigrant, unless there was a compelling humanitarian reason to spare them.

First-time offenders could be sentenced to up to six months in prison. Another arrest could lead to a felony charge and up to two years in prison.

The strategy would solve the Border Patrol's bed space problem by sending illegal immigrants into the federal criminal justice system, which would pick up the tab for their incarceration. Most importantly, Hill reasoned, it would finally attach a concrete consequence to illegal entry - even if most illegal immigrants actually would only spend a few days in jail or prison for their first offense.

"There can't be crime without punishment," Hill said, "or you are never going to diminish or reduce crime."

At the Del Rio courthouse on a March morning, just an hour's drive from the Eagle Pass golf course, more than 50 illegal immigrants in handcuffs and leg irons were crammed into a single, wood-paneled courtroom, filling the jury box and overflowing onto the public benches in the courtroom.

All of the defendants that morning were charged with illegal entry, a misdemeanor.

Nationwide, the number of misdemeanor illegal entry prosecutions increased about 218 percent since the start of Streamline - from about 15,600 in 2005 to nearly 50,000 in 2011, according to Department of Justice data.

U.S. Magistrate Judge Collis White, a former prosecutor with a thick shock of snow-white hair, asked the defendants if they understood the charges they faced, and whether they understood the consequences of pleading guilty. With the exception of one man, they all replied "Si."

And then, one by one, the cases were dispatched.

"On March 2, 2012, the defendant, Miguel Alejandro Chavez-Perez, a native and citizen of Mexico … entered the United States illegally from the Republic of Mexico by crossing the Rio Grande," the attorney for the government read in court.

Angela Raja Saad, an assistant federal public defender in Del Rio, consulted her notes, then told the judge that Chavez-Perez had two children, the youngest 11 months old. "They are without diapers and milk because they cannot pay the bills," Saad said.

The defendant studied his shackled hands. The judge pronounced the standard sentence for a first-time offender: 10 days in prison. It essentially amounts to time served, plus the time it takes immigration officials to process the defendant's deportation paperwork.

Saad requested leniency for another Mexican, Felipe Solano Piñon, who had been caught for the third time. His wife was severely malnourished, Saad said, and he could not afford to buy beans or tortillas.

"He was just desperate, Your Honor," she said.

White paused, eventually deciding to give the man a 30-day sentence, along with a warning not to come back.

"It always gets worse. Do you understand?" the judge asked.

The entire proceeding - initial appearances, guilty pleas, sentences - was completed in two hours. Then, in shackles, they shuffled from the courtroom, all now convicted criminals.

"From a due-process perspective, it's a nightmare," said William D. Fry, the branch chief of the federal public defender's office in Del Rio. "It's horrible."

Fry said many of the illegal immigrants do not understand the impact of a criminal conviction, which can lead to a ban on legally immigrating. Others, he said, are so desperate that a few days in jail is hardly a deterrent. And the volume of cases churning through the system means that mistakes are inevitable, Fry added.

"The program got its arms around everything, its tentacles into everything," the attorney said. "As a consequence, believe it or not, you can sometimes find an American citizen or a lawful permanent resident on the Streamline docket."

Alia Moses Ludlum, a U.S. District Judge in Del Rio, said she's heard due-process concerns about the program for years, and takes them seriously. But the main point raised by advocates, she said, is the high case load for defense attorneys, which she said is just part of "reality on the border."

Some magistrates and judges in border states from Texas to Arizona have complained that the courts are straining under the weight of the Streamline prosecutions. U.S. District Court Judge Sam Sparks from the Western District of Texas demanded in a 2010 ruling that federal prosecutors justify their decisions to prosecute illegal-entry and re-entry cases, calling the expense to taxpayers "simply mind-boggling."

The government declared a judicial emergency in Arizona's federal courts in 2011, citing Streamline as contributing to the district's "crushing criminal case load."

Critics say the government has failed to provide key information about Streamline, including how much it costs. And some academics caution there is too little publicly available data on the program to credit it with the 40-year low in border arrests.

Deputy Chief Ronald Vitiello said the Border Patrol has been collecting data to measure the effectiveness of Streamline and other immigration enforcement strategies since January. But he declined to release any of it, calling the results preliminary.

Since the start of Streamline, the ranks of the Border Patrol have more than doubled, to some 21,000 agents. The agency has added more than 700 miles of fencing and other border barriers, as well as technology such as cameras and drones.

And, perhaps most importantly, some academics suggest, the U.S. has dipped into a recession since 2008, when border arrests really started to nosedive.

"Everything the Border Patrol claims Streamline has created could just as easily be attributed to the falling number of open jobs in the United States," said Brittney Nystrom, director of policy and legal affairs for the National Immigration Forum.

Vitiello said the Border Patrol is testing out a variety of "individualized" punishments, including criminal prosecution and repatriation to distant stretches of the U.S.-Mexico border.

"Streamline is important," he said, "but it is a big piece of a bigger system."

That likely will not satisfy immigration hawks like Culberson. Nor will it appease immigrant advocates, who contend that the government is making a mistake with the push for increased criminalization.

"I think - really, to be honest with you - everybody has used this immigration issue to their benefit and they should have addressed it in a sensible way. They've kicked it around like a football," said Roberto Gonzalez, a 64-year-old real estate consultant who lives on a ranch just south of Eagle Pass, after teeing off from the fourth hole of the Eagle Pass Golf Course with a friend from Mexico.

"Whether we like to accept it or not, we need a labor force in this country that we don't have," he said.